GOP Prosecutor’s “Clerical Error” Needs Attorney General Review

Republican Part-Time Prosecutor David Fornshell keeps digging himself in a deeper hole. Fornshell may have broken the law in an effort to clean up a mistake by his office. A mistake his office made while Fornshell was pursing a politically motivated investigation of a critic of Governor John Kasich.

Earlier this month, we reported on Fornshell’s politically motivated investigation of a school superintendent who criticized the Kasich Administration’s school funding plan. We called the investigation “bullshit.” The Cincinnati Enquirer called for an end to the investigation, calling it “heavy handed.”

We later learned that while Fornshell was playing politics and trying to intimidate Kasich critics, Rome was (proverbially) burning. A man was indicted and remained in jail even though the grand jury has voted not to approve charges.

Fornshell has tried to blame the mistake on an error by the Grand Jury. He has not, however, explained the exact nature of the error or provided any supporting documents. For example: the grand jury voting sheet would be signed by the Grand Jury foreman – was this incorrect? Did Fornshell’s office misread the document? It is hard to know anything for sure without an investigation and the release of grand jury records. (Many of which are confidential.)

Regardless, a former prosecutor we consulted explained that Fornshell is being misleading about the role of the Grand Jury in order to cover up a mistake by his office.

The problem with Fornshell’s claim that the Grand Jury made a clerical mistake is that grand juries are not really autonomous bodies. Rather, grand juries generally do what the prosecutor suggests. The old adage is that the grand jury would “indict a ham sandwich” if the prosecutor asks them to. The same is true about cases where charges are refused. A grand jury will almost never “no bill” a case [refuse to bring charges] unless the prosecutor who presents the matter asks them to do so.

In this situation, it is highly unlikely that Fornshell’s office didn’t know that the grand jury had not voted to indict, because almost certainly they had asked the grand jury to not indict.

But that little bit of disingenuousness isn’t the worst part. The worst part is that Fornshell may have committed a crime when he tried to clean up the mess.

Fornshell told the Dayton Daily News that when he learned of the possible error, “he began interviewing the grand jurors and realized the mistake made by the panel.”

This violates Ohio Law. Revised Code Section 2939.19 provides that a grand juror may not “state or testify in court in what manner any member of the grand jury voted . . .” The Ohio Rules of Criminal Procedure are even more explicit. Rule 6(E) provides that “Deliberations of the grand jury and the vote of any grand juror shall not be disclosed.” The rule permits only the disclosure “of other matters occurring before the grand jury . . . to the prosecuting attorney.”

By asking the grand jurors about their votes, Fornshell invited violations of these laws and rules. He asked the grand jurors to “state” how they voted and sought to have them disclose their deliberations and votes.

This is a criminal offense. The dereliction of duty statute, R.C. 2921.44, provides that a public servant may not “recklessly do any act expressly forbidden by law with respect to the public servant’s office.” A violation of this statute is a second degree misdemeanor punishable by up to 90 days in jail.

The right thing to do now is for Fornshell to bring in the Attorney General’s Office or an outside prosecutor to review this matter and prepare a report about what happened. If this is merely a “clerical error” then he should have noting to hide.